CONSUMER DISPUTES REDRESSAL FORUM,PALAKKAD

Dated this the 28^th June, 2016

PRESENT :  SMT. SHINY.P.R, PRESIDENT

               :  SMT. SUMA. K.P, MEMBER                      Date  of filing : 28/10/2013

                :  SRI.V.P.ANANTHA NARAYANAN, MEMBER

CC /183/2013

1. Katampazhipuram Grama Panchayath,

    Post Katampazhipuram – 678 633

    Ottapalam Taluk, Palakkad District,                       :        Complainants

    Rep.by its Secretary.

    (By Adv.A.V.Ravi)

2. The Assistant Engineer, LSGD,

    Katampazhipuram Grama Panchayath,

    Post Katampazhipuram – 678 633

    (By Adv.A.V.Ravi)

Vs

1. Kerala State Nirmithi Kendra, Rural Centre              :        Opposite parties

    Nirmithi  House, Opposite Staff Quarters,

    Government Polytechnic, Kodumbu,

    Palakkad. Rep. by its Regional Engineer.

2. The State of Kerala

    Rep. by District Collector,

    Collectorate, Civil Station, Palakkad

3. The Divisional Forest Officer,

    “Aranya Bhavan”, Rly.Colony Road,

    Olavakkode, Palakkad.

   (By Adv.C.Sreekumar for OP 1-3 –Govt.Pleader)

 O R D E R

By Smt. Suma. K.P, Member,

The complainants entered in to an agreement with opposite parties for the construction of a building  for Krishi Bhavan of Katampazhipuram Grama  Panchayath on 15/3/2008.  Complainants paid an amount of Rs.4,62,000/- to the opposite parties towards construction work, but the opposite parties failed to complete the construction work as specifically mentioned in the agreement.  The complainant further alleges that the opposite parties had completed the work only to the tune of Rs.3,00,939.73 only and an amount of Rs.1,61,060.27 has been received by them in excess from the complainants.  Even after repeated demands, the opposite parties has not completed the construction work and also willfully evaded from the legal obligation towards the complainants.  The complainants alleges that the above act of the opposite parties amounts to deficiency  of service and unfair trade practice.  Now the complainants has to spent a huge amount due to the increase in the price of raw materials as well as wages so as to complete the construction work.  More over the opposite parties has not returned the amount which they have received in excess.  The complainants issued so many letters but there was no response. Atlast on 30/1/2013 the complainant issued a lawyer notice to the opposite parties demanding them to complete the construction work with immediate effect, on or before 31/03/2013.  Opposite parties issued a reply raising false and frivolous contentions.  So the complainant had approached before this forum for the redressal of their grievance. The complainant had prayed for an order to direct the opposite parties to complete the construction work of the Krishi Bhavan building or to pay an amount of Rs.5lakhs towards compensation for the deficiency in service and to direct the opposite parties to refund Rs.1,61,060.27 received in excess from the complainant along with cost of this proceedings.

Notice was issued to the opposite parties for appearance. Opposite parties entered appearance and filed version denying  all the allegations in the complaint.  The complainant represented by its Asst.Engineer had entered in to an agreement on 15/3/2008 for the construction of the building for Krishi Bhavan. As per the agreement the work will be commenced immediately on receipt of advance and work shall been completed within a period of 6 months.    The total estimate shown was Rs.7,89,250/-.  The 1^st installment was received on 17/04/2008.  On 21/4/2008 the opposite parties has sent a letter to the complainant stating that they are unable to start the construction for the reason that the complainant has not cut and removed the trees on the construction site. Since the Panchayath had failed to make the construction site  suitable for construction, the construction work could not be started and the delay was only due to the incapacity and negligence on the part  of the Panchayath itself.  Complainant took about 5 months to remove the trees and other obstacles and the opposite parties was not able to start the construction work due to the above mentioned reasons.  The construction was started only on 19/8/2008 and 90% of the fund was utilized by the opposite parties and submitted the bill on 20/10/2008.  The complainant sanctioned the 2^nd allotment only after 6 months i.e. on 23/4/2009 and the opposite parties utilized 90% of the fund and submitted the bill on 27/7/2009.  The complainant dispersed fund only after 5 months i.e. 21/12/2009.  This delay happened only due to the negligence and stubborn nature on the part of the complainants.  By that time the cost of construction, material charges and labour charges has arised and the opposite party was unable to continue with the construction.  The opposite parties has intimated about this fact to the complainants on several occasions through letters and in person.  Since the complainants are not co-operating with the opposite parties, on 05/03/2010 the opposite parties has sent a letter along with the account statement as on date to the complainant stating the above mentioned fact and intimated them to exonerate the opposite parties from this agreement.    On 02/01/2012 the complainants has sent a  notice to the opposite parties stating that the incomplete construction work done by the opposite parties is being valuated by the Block Asst.Executive Engineer on 12/1/2012 and as per the valuation the construction charges were only Rs.3,00,939.73.  The opposite parties replied to the same by explaining all the latches on the part of the complainant and stating that they are not ready to continue with the construction and was ready and willing to return the balance amount to the complainant, if any.  The complaint is also barred by limitation.   The Nirmithi Kendra is an institution coming under the complete control of Kerala State Govt. and is answerable to the Govt.  The complaint is bad for non joinder of necessary parties.  Opposite party is not liable to pay any compensation or any of the claims prayed for by the complainant and negligence and unfair trade practice was on the part of the complainant itself.  Complainant had violated the stipulations of the agreement.  So the opposite parties has to be sufficiently compensated by the complainant.  For the above reason complaint has to be dismissed with cost.

Complainant filed application to furnish the address of necessary party.  Since no counter was filed.  IA was allowed.  Complainant filed application to implead supplemental opposite parties 2 and 3 and for consequential amendment.  Application was allowed and fresh notice was issued to supplemental opposite parties 2 and 3.  Supplemental opposite parties 2and 3 entered appearance through government pleader but no version was filed.  Complainant filed chief affidavit.  Opposite parties filed application seeking permission to cross examine the complainant.  Complainant was cross examined as PW1.  Opposite parties also filed proof affidavit and complainant filed application seeking permission to cross examine the opposite parties.  1^st opposite party  was cross examined as DW1.    Ext.A1 –A3 was  marked from the part of the complainant and  Ext.B1 series was marked from the part of the opposite parties.  Evidence was closed and the matter was heard.

The following issues are to be considered.

1. Whether there is any deficiency of service on the part of the opposite parties?

2. If so, what are the reliefs and cost? 

 ISSUES 1 & 2

According to the complainant the opposite parties had not completed the construction of the building as per Ext.A1  within the stipulated time as agreed on 15/3/2008 as per Ext.A1.  But according to the opposite parties the delay was caused only due to the non co-operation on the part of the complainant.  Complainant has violated stipulations in the agreement.   Now the complainant alleges that an excess amount of Rs.1,61,060.27 was paid in excess to the opposite parties and the same has to be refunded.  The counsel for the opposite parties had submitted that exercise of contractual right did not amount to deficiency of service.  The agreement  was done wholly in accordance with the terms of the contract and, therefore, there was no” deficiency in service” as contemplated by the consumer protection act and hence this petition is not maintainable.    The counsel for the opposite parties had  also placed a decision reported in 2000 KHC 1617 of our Hon’ble Supreme Court in support of this contention.  Opposite parties also contented that the above complaint is barred by limitation. The cause of action from the complainants arised from the date on which negligence was committed.  No sufficient cause for delay or a petition for condonation of delay was filed by the complainants hence the complaint is barred by limitation.  The agreement was dated 15/03/2008 and as per Ext.A1 agreement the construction has to be completed on or before 31/03/2009.  The said complaint was filed only on  28/10/2013 hence there is a delay of 4 years.  The opposite parties had also admitted that they are willing to refund the excess amount and had issued letter stating the above fact.  The complainant has demanded for refund of excess amount which is only a civil dispute, and cannot be tried by this Forum.  They had also prayed for an order to complete the construction work for the aforesaid Krishi Bhavan building as per the agreement.  But the opposite parties  had submitted that since the cost of construction materials and labour charges had already increased they are unable to continue the construction as per the agreement.  The opposite parties has also intimated to the complainant stating that they are not ready to continue with the construction and was ready and willing to return the balance amount to the complainant.  During cross examination PW1 had submitted that there was no defect in the construction done by the opposite parties.   He had no complaints with regard to the quality or materials used for construction.  The complainant had also not produced evidence to prove that opposite parties had collected excess amount from the complainant.  He had also admitted that the construction site at the time of agreement was not suitable for construction.  There was trees in the alleged site and  the complainants has not cut and removed the trees till August 2008.  There was delay in sanctioning the amounts for construction.   

Considering the facts submitted from both parties we are of the view that the alleged disputes is not a consumer disputes and it does not come within the purview of consumer protection act.  It was only a breach of contract and exercise of contractual right will not amount to deficiency of service and it has to be decided before a competent civil court. In the light of the above discussions complaint is dismissed without costs.

Pronounced in the open court on this the 28^th  day of June, 2016.

                                                                 Sd/-

                                                                    Shiny.P.R

                                                                     President

                                                                       Sd/-                                                                                                                     Suma. K.P

                                                                     Member

                                                                       Sd/-

                                                           V.P. Anantha Narayanan

                                                                     Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext.A1 –Original Agreement No.53/AE/2007-08 dtd.15/03/2008 issued from Katampazhipuram Grama Panchayath.

Ext.A2 series– Copy of Regd. notice dtd.dtd.30/01/2013 with acknowledgement card and postal receipts

Ext.A3 – Reply notice dtd.8/2/2013 (Original)

Witness marked on the side of complainant

PW1-Mohanakrishnan

Exhibits marked on the side of opposite party

Ext.B1 series - Letter dtd.5/03/2010 with acknowledgement card.

Witness examined on the side of opposite party

DW1-Gireesh.M

Cost Allowed

No cost.